Roeber v. Dawson , 21 N.Y. St. Rep. 160 ( 1888 )

Per Curiam.

The action is for money converted by the defendant as agent-in a fiduciary capacity. It was formerly regarded as an action on contract, and the right of arrest extrinsic. Segelken v. Meyer, 94 N. Y. 484-; Donovan v. Cornell, 8 Civ. Proc. R. 283. The allegation of conversion was treated assurplusage, and not issuable, (Id.,) and no execution against the person could-issue unless an order of arrest had been obtained prior to judgment, ( Wood v. Henry, 40 N. Y. 124.) Since the amendment made, in 1886, to section 549 of the Code, this rule has been changed. The right to arrest in such a case is-, no longer extrinsic to the cause of action, but is made an essential part of it.The action is (by this section) treated as one ex delicto; for the last portion of section 549 provides that a judgment for the defendant will not bar a new action (ex contractu) to recover the money. The judgment in such an action (ea: delicto) authorizes an execution against the person without the prerequisite of an order to arrest. Code, § 1487. The court below, in holding otherwise, clearly erred in its construction of section 549, supra. The fact that the plaintiff entered judgment with the clerk, without application to the-court, may have rendered the judgment voidable for irregularity, but not-void. It can only be attacked by a direct motion founded on the irregularity complained of. It is good until set aside, and while in force is sufficient to-authorize an execution against the person. It follows that the order appealed-from must be reversed, with costs.